In Border-Wall Dispute, Divided Court Bows to Trump

      The Supreme Court's newest justices, Neil Gorsuch and Brett Kavanaugh, both presented themselves to the Senate and to the American public as committed originalists and textualists, always true to the text and original meaning of the U.S. Constitution. But they showed those professed views to be mere pretense on Friday [July 26] in a behind-the-scenes separation of powers dispute between Congress and President Trump.
      Gorsuch and Kavanaugh voted along with their three Republican-appointed colleagues to allow the Trump administration to violate the text and spirit of the Constitution by diverting money Congress appropriated for the U.S. military to the building of President Trump's wall along the U.S.-Mexico border. The Court's 5-4 decision came on what the administration called an emergency request to lift an injunction issued and upheld by two lower federal courts and openly flouts Congress's constitutional control over federal spending.
      In their new book on the Kavanaugh confirmation, conservative journalist Mollie Hemingway and conservative activist Carrie Severino describe Kavanaugh's record on the D.C. Circuit appeals court as always faithful to "the text and original meaning of the Constitution." In fact, Kavanaugh's 300 opinions on the D.C. Circuit dealt mostly with the stuff of statutory interpretation and administrative rulemaking, not constitutional law.
      The dispute before the Court last week, however, was a pure question of constitutional law on provisions covered in the first week of Con Law I: Separation of Powers. Trump was claiming the authority to spend military appropriations on the non-military purpose of constructing the wall along the United States' southern border.
      The Constitution clearly gives Congress the power of the purse. "No money shall be drawn from the Treasury but in consequence of Appropriations made by law," according to Article I, section 9, clause 8. The president has no free-wheeling power to spend money unless Congress appropriates the money for the purpose at issue.
      This elementary separation-of-powers issue reached the Court in a case brought by the Sierra Club and a coalition of southern California communities. They sued Trump in federal district court in San Francisco, contending that the administration had no authority to redirect DOD funds to the border wall project.
      For legal standing, these plaintiffs claimed the border wall would harm the environment and interfere with their recreational interests. They argued that these claimed harms would satisfy the so-called "zone of interests" test often required to establish legal standing. But they also argued that a long line of precedents granted plaintiffs to challenge allegedly unauthorized governmental action without any need to satisfy that test.
      Those arguments satisfied Judge Haywood Gilliam, the Obama appointee designated to hear the Sierra Club case. He issued a permanent injunction prohibiting the transfer of funds on June 28; a few days later, a three-judge Ninth Circuit appellate panel rejected the government's request to stay Gilliam's injunction. The government headed straight to the Supreme Court, with its five-justice majority of Republican appointees, including the two named by Trump.
      The administration claimed authority to "reprogram" DOD funds to the border wall project under a section of the Defense Department appropriations act: specifically, section 8005 in the act. That section allows transfer of funds for "unforeseen" needs as long as the funds had not been "denied" by Congress. Solicitor General Noel Francisco argued implausibly in a written brief that the need for border wall funds was unforeseen and the funds for the wall had never been "denied" though vigorously debated in Congress and cut in half from the administration's request.
      Francisco went on to argue that the plaintiffs had no legal standing to enforce the limits on the president's discretion in reprogramming funds. But the administration had argued, in a separate case in federal district court in the District of Columbia, that the House of Representatives itself had no legal standing either. A Trump-appointed judge, Trevor McFadden, dismissed that suit in May on that ground.
      The Court's decision came in an unsigned, one-paragraph order issued late Friday afternoon granting the requested stay pending the government's appeal before the Ninth Circuit and later appeal to the Supreme Court itself. One of the "reasons" — no others were listed — was the government's "sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with section 8005." A weak reed, indeed, on an arguably inapplicable technicality.
      The four liberal justices voted to deny the stay. In an opinion, Justice Stephen G. Breyer said the administration had failed to show "irreparable harm," as ordinarily required to stay a lower court decision and short-circuit the appellate process. As a compromise, Breyer would have allowed the government to let contracts but not to begin actual construction.
      Trump issued a gloating tweet within the hour: "Wow! Big VICTORY on the wall!" From the opposite end of Pennsylvania Avenue, House Speaker Nancy Pelosi said the Court's ruling "undermines both the Constitution and the law." From all that appears, Gorsuch and Kavanaugh are working from a different version.
      So too, Trump himself, as seen in his explanation of presidential powers to a group of young conservatives last week [July 25]. "Then I have an Article 2," he told the young people wrongly, "where I can do whatever I want as president." The Supreme Court, sadly, missed a good opportunity to correct the president's misstatement, but apparently this Court will pretty much let this president do whatever he wants.

In Final Months, Justice Stevens Had Regrets

      Supreme Court justice John Paul Stevens was fondly remembered after his death last week [July 16] as a judge's judge, a generous boss and mentor, and the very embodiment of courtly manners. The outpouring of tributes is an unpleasant reminder, however, of the Court's transformation in the final years of Stevens' long life from a safeguard for liberty and justice into an instrument of the Republican Party's legal and political agenda.
      Stevens aired his own regrets about that development in candid comments when NPR's Nina Totenberg asked him in May whether he thought the current Supreme Court had taken a radical turn to the right. "Yes," Stevens replied. "I really do. I think some of the decisions really are quite wrong and are quite contrary to the public interest."
      Stevens was President Gerald Ford's nominee for the Court based on the recommendation of Edward Levi, the former president of the University of Chicago who served as U.S. attorney general in Ford's accidental presidency. Ford had asked Levi to recommend a candidate who could win confirmation easily based on academic and legal credentials.
      Stevens' credentials were impeccable and, in contrast to most of the Republican nominees in the years since, completely apolitical. The Democratic-controlled Senate confirmed Stevens in a 98-0 vote, within weeks after Ford nominated him. Today, Stevens would have been vetted by the Federalist Society and his name never put forward.
      Stevens arrived at the Court after five years on the federal appeals court in Chicago, his record well regarded and his judicial demeanor and temperament unquestioned. He was a registered Republican and Midwestern conservative with not the slightest hint of an ideological agenda as the successor to the outspoken liberal justice, William O. Douglas.
      In his recently published memoir The Making of a Justice, Stevens stresses the importance as a judge to "learn on the job." And he did. In his first term on the Court, he joined two other centrist justices, Byron White and Potter Stewart, in casting the pivotal votes to allow the resumption of capital punishment four years after the Court had outlawed the death penalty as arbitrary and discriminatory. The ruling in companion cases prohibited mandatory death penalty laws but allowed capital sentencing schemes that gave juries sufficient guidance to guard against arbitrariness.
      Thirty years later, Stevens confessed that the legal experiment he helped launch had failed. Dissenting in an early method-of-execution case, Baze v. Rees (2008), Stevens voted to find the death penalty unconstitutional based on what he described as "my own experience." Stevens said he had concluded that the death penalty amounted to cruel and unusual punishment under the Eighth Amendment because it represented "the pointless and needless execution of life with only marginal contributions to any discernible social or public purpose."
      Stevens also changed his stance on another major issue during his tenure: affirmative action. He voted early in his tenure in Bakke v. Regents (1978) to bar a quota-like admissions system at the University of California-Davis medical school. A quarter-century later, however, Stevens cast a pivotal vote in the 5-4 decision in Grutter v. Bollinger (2003) to uphold a more narrowly tailored use of race in admissions at the University of Michigan law school.
      On and off the bench, Stevens was unfailingly polite, but he was sharply critical in any number of dissenting opinions. He famously complained in Bush v. Gore that the 5-4 decision to cut off the Florida recount prevented the country from ever being sure about who won the 2000 presidential election. A few years later, he dissented from Chief Justice John Roberts' decision in Parents Involved v. Seattle School District (2007) to limit school districts' ability to adopt pupil assignment policies to promote racial balance. In his dissent, he opined that none of the justices on the Court at the time of his appointment would have joined Roberts' opinion.
      Stevens retired from the Court in 2010 at age 90, one of nine justices to serve past that age; he marked his 99th birthday in April during the round of interviews for his memoir, nearly four years after he had become the longest lived justice ever. As noted in this space before, among several other long-serving justices Stevens stands out as having retired of his own accord when he sensed his stamina failing. Douglas was literally forced off the Court by his colleagues in 1975: so too with Stephen Field in 1897 and Oliver Wendell Holmes Jr. in 1931.
      Despite his age, Totenberg found Stevens mentally sharp and physically fit. But he was openly discouraged about the Court's current course. The Court, he remarked, "seems to be more ideological than it has been since the 1930s." The mantra that the justices are judges, not politicians, is "harder and harder to believe," he lamented.
      With the term's most important decisions of the term yet to come, Stevens observed somewhat hopefully that Roberts "occasionally takes a different position from the other Republicans." Asked if there was one takeaway from his book, his third,  Stevens obliged. "The world is changing much faster than I anticipated," he answered. For better or worse, Totenberg asked. "For the worse, I think."

Closing the Door to Establishment Clause Challenges

      The Supreme Court's eventual decision to leave a 40-foot Christian cross standing on government land as a memorial to U.S. soldiers killed in World War I was a foregone conclusion once the justices agreed to hear the case. Church-state separationists braced themselves for defeat with hopes that the Court would inflict as little damage as possible on the constitutional precedents limiting government support for religious displays and religious institutions.
      With the result fully anticipated, experts and advocates on both sides of the issue largely overlooked the damage that the ruling actually does to potential Establishment Clauses in the future. Taking language in the various opinions at the broadest sweep, the ruling in American Legion v. American Humanist Association [June 20] virtually closes federal courts to Establishment Clause cases by leaving potential plaintiffs with no grounds to object in the mine run of cases.
      Justice Samuel Alito's opinion in the case stops just short of formally overruling the much maligned decision in Lemon v. Kurtzman (1971) that set up a three-part test for judging government practices or policies alleged to amount to establishment of religion. In its place, Alito's opinion appears to prohibit only government practices that amount to coercion and gives a constitutional pass to longstanding government actions—as, for example, the 90-year history of the Peace Cross on a centrally located traffic island in suburban Bladensburg, Maryland.
      The Lemon test, adopted with only one justice dissenting, directed courts to determine whether a government practice had a secular purpose, whether a reasonable observer would see it as an endorsement of religion, and whether it resulted in government entanglement with religion. The test has been much maligned through the years, but seemingly only because the second prong actually put some teeth into what church-state separationists views as the religious neutrality promised by the Establishment Clause.
      Applying the Lemon test not at all strictly, the Bladensburg Peace Cross fails, just as the federal appeals court for Maryland ruled in the decision that the Supreme Court reversed. Anyone living in or visiting Bladensburg surely would view an immense cross standing on government property at a gateway to the city as an endorsement of the Christian faith. Try to imagine the monument standing on the grounds of the U.S. Capitol and try to think of it as something other than a singular endorsement of Christianity among any other religious faiths.
      Alito cast the cross as a universal symbol for those lost in World War I, but he overlooked not only the Star of David tombstones for Jewish soldiers but also the actual history of the monument. The Christian pastors who spoke at the dedication in 1925 viewed it in exactly those terms, as symbolic of Jesus' sacrifice at Calvary, which they likened to the sacrifices that fallen soldiers made in defense of liberty worldwide.
      In a separate opinion, Justice Neil Gorsuch drew an important corollary from what he called the Court's decision to scrap Lemon. Gorsuch found it wrong for the Court, in a string of prior decisions, to have allowed Establishment Clause plaintiffs standing based on what he called their status as "offended observers" under Lemon's second prong. "With Lemon now shelved," he wrote, "little excuse will remain for the anomaly of offended observer standing . .  ."
      The individual plaintiffs in the case—one Bladensburg resident and two members of the American Humanist Association or an affiliated group -- would have been knocked out of the case on Gorsuch's premise, perhaps the humanist association itself as well. The government entanglement with the Peace Cross was relatively minimal: a six-figure expenditure by the Maryland-National Capital Park Commission over the years to maintain the monument.
      An earlier Roberts Court decision would cut the legs off an Establishment Clause challenge based solely on the expenditure of government funds. It was Alito who wrote for the Court in a decision, Hein v. Freedom From Religion Foundation (2007), that virtually eliminated taxpayer standing to object to government expenditures to promote or endorse religion generally or one faith over another. The 7-2 ruling in that case gave the Bush administration free rein to reprogram White House expenditures to a newly created Office of Faith-Based and Community Initiatives tasked with promoting faith-based groups nationwide.
      In the new decision, Alito found the Peace Cross unobjectionable based in large part on "its historical importance." As constitutional logic, this reasoning would have undercut any number of important Supreme Court decisions. Imagine if the Brown v. Board Court had given racial segregation a constitutional pass because of the long-standing acceptance of the practice. School-sponsored classroom prayer would also pass muster under what Justice Brett Kavanaugh characterized as Alito's "history and tradition" test unless a court viewed the government-supported conformity as coercive.
      Oddly, Alito revives the idea of the "offended observer" as an additional reason for leaving the Peace Cross undisturbed. Many people, he argued, would view "destroying or defacing the Cross" as "aggressively" hostile toward religion, not neutral. In many other settings, the Court has correctly disregarded the risk of public criticism in weighing its responsibility to enforce the Constitution against prevailing public sentiment.
      The muted reaction to the Court's decision included a statement from the American Civil Liberties Union calling it a "blow against the separation of church and state." But even the ACLU failed to remark on the new barriers the decision appears to erect to enforcing the Establishment Clause.

On Census, Trump Eyes Executive Order Amidst Chaos

       President Trump threw a tantrum on Twitter after the Supreme Court's decision [June 27] that blocked the administration for now from including a citizenship question as part of the 2020 decennial census. Chief Justice John G. Roberts Jr., hardly a critic of executive branch power, rejected in Department of Commerce v. New York what he called the "contrived" explanation that Commerce Secretary Wilbur Ross gave for including the question in the census form distributed to all U.S. households.
      The Census Bureau, along with Justice Department lawyers, responded to the decision a few days later [July 2] by instructing printers to start printing the questionnaire without the citizenship question. The government had told lower courts and the Supreme Court that the "absolute" deadline for starting the mammoth print job was June 30. Nevertheless, Trump falsely called the announcement "fake news" in a tweet and insisted the administration was still working on a way to include the citizenship question.
      Trump then gave his tweet substance by instructing the Justice Department to come up with some way to get the question in. Justice Department lawyers had to scramble their Fourth of July plans as they went before two federal judges, tails between their legs, to explain the new instructions from their client. By close of business Friday [July 5], the government's new rationale for the citizenship question had yet to emerge, but Trump had raised the possibility of circumventing the courts with an executive order to instruct the Commerce Department to put the question in after all.
      Ross's contrived explanation for the citizenship question, rejected by Roberts and the four liberal justices, rested on a letter from the Justice Department formally requesting a citizenship question supposedly to aid enforcement of the Voting Rights Act. The letter came only after Ross personally asked then-Attorney General Jeff Sessions to get a letter that he could use to justify the question — a letter that Roberts later dismissed as "pretext."
      Ross was forced to contrive an explanation because there is no legally or statistically legitimate reason to include the citizenship question apart from the illegitimate political motive to discourage responses from people living in the United States who are not citizens or are uncertain of their citizenship status. The Constitution requires an "actual enumeration," not an incomplete count. Experts at the Bureau of the Census, part of the Commerce Department, countered Ross's insistence on adding the citizenship question with documented studies showing the question could result in a seven-figure undercount, primarily among Hispanics and non-citizens.
      The Census Bureau answered Ross's continued pressure by showing that a citizenship question would do more than depress the response rate. It would also produce "less complete and accurate" data, they warned: some non-citizen households might lie; others might be mistaken about their status. A better option, the statistical experts advised, would be to match census responses with administrative records already maintained by the government showing citizenship status.
      In a separate opinion written for the four liberals, Justice Stephen G. Breyer related all this information in concluding that Ross's decision was "arbitrary and capricious," administrative law jargon for no good. Roberts would not go that far. Instead, he stopped just short of calling Ross a liar by stating that the secretary's explanation was "incongruent with what the record reveals about the agency's priorities and decisionmaking process."
      Trump further contradicted the administrative record on Friday [July 5] with a new explanation for the citizenship question. "You need it for Congress for districting,” he told reporters in an on-the-run question-and-answer session. “You need it for appropriations — where are the funds going? How many people are there?" That answer in effect validated the allegations by plaintiffs in the two cases that the citizenship question was aimed at reducing the population count in areas with substantial Hispanic communities, all for the purpose of reducing representation in Congress and cutting federal funds to some extent.
      The Supreme Court's decision came in the government's appeal of a decision by U.S. District Court Judge Jesse Furman in a case initiated by immigrant rights groups and joined by New York and other states. A federal judge in Maryland, Judge George Hazel, had similarly ruled against the citizenship question. Hazel added to the government's legal problems on Friday by deciding to expand the case before him into a racial discrimination case. Furman and Hazel had both rested their rulings on administrative law grounds without finding that the administration was intentionally seeking to reduce the population count of minority groups.
      In New York, Furman issued an order noting that the government had acknowledged that his injunction "remains in place" and that it had promised to notify the court before taking any steps to insert the citizenship question. With that said, Furman found no need for a status conference in the case pending further information on the proceedings before Judge Hazel. In Maryland, plaintiffs' attorneys were urging Hazel to issue an extraordinary order prohibiting the administration from saying anything to suggest that the census would include a citizenship question.
      The chaotic maneuverings were aptly described by election law expert Rick Hasen as "amateur hour," but some cynical observers saw a method to the administration's madness. With enough confusion, the response rate among Hispanic communities might be depressed even without the citizenship question. And the question remained whether the administration could get the case back before the Supreme Court and persuade Roberts in the end to go along after all.

Republican Justices Boost GOP on Gerrymandering

      The Supreme Court's stunning decision to bar federal courts from hearing suits that challenge political gerrymandering whether practiced by Republicans or by Democrats has the misleading appearance of political evenhandedness. In a legal coup executed by five Republican-appointed justices, Chief Justice John G. Roberts Jr. slammed the federal courthouse door shut last week [June 27] to voters of any political stripe who object to having their votes count for nothing through the political skullduggery of partisan redistricting.
      Roberts took pains in announcing the Court's decision in Rucho v. Common Cause to make clear that the 5-4 majority was turning aside not only Democrats' challenge to a Republican gerrymander in North Carolina but also a challenge by Republicans to a Democratic gerrymander in blue state Maryland.
      History refutes any implication of political evenhandedness on the part of the Republican justices. Through three-and-a-half decades of political gerrymandering cases, all of the cases to reach the Court except Maryland's Lamone v. Benisek have been challenges to Republican-drawn district maps. In each of those cases, Republican mapmakers were credibly shown to have drawn congressional or legislative districts primarily for the purpose of helping elect Republicans at Democratic voters' expense: Indiana in Davis v. Bandemer (1985); Pennsylvania in Vieth v. Jubiler (2004); Texas in League of United Latin American Citizens v. Perry (2006); and Wisconsin in Gill v. Whitford (2018).
      Current political conditions reinforce the point that Republicans will benefit from federal courts being ordered to stay out of political gerrymandering cases. At present, Republicans control legislatures and gubernatorial offices in 20 states, while Democrats lag behind with unified control in only 12 states. More to the point, Republicans have been more aggressive in drawing district lines for political advantage in red states than Democrats have been in blue states.
      Indeed, Democrats and liberal advocacy groups have provided much of the political muscle behind the efforts that Roberts commends in his decision to create bipartisan or nonpartisan commissions to draw district lines. Thus, as political journalist David Freedlander remarked on Twitter, the likely effect of the ruling is for Republicans in red states to respond by "gerrymandering Democrats to a fare-thee-well"  and for Democrats in blue states to respond "by setting up a nonpartisan redistricting commission."
      Even in the two instant cases, North Carolina Republicans were guilty of a more serious offense than the Maryland Democrats. Partisan motivations were not disputed in either case. Maryland's Democratic governor Martin O'Malley acknowledged the new congressional map was designed to eliminate one of the state's two Republican House members. In North Carolina, state Rep. David Lewis, one of the chief legislative mapmakers, stated that his map was designed to preserve the Republicans' existing 10-3 edge in U.S. House seats.
      Lewis made no secret of his motivation. "I think electing Republicans is better than electing Democrats," he said. He offered the 10-3 map, he explained, only because he found it impossible to draw a map that would reliably elect 11 Republicans in a state closely divided between Republicans and Democrats.
      Roberts' answer to such political chicanery is to throw up the Court's hands and leave voter lambs to the mercies of political wolves. Reviewing the cases, Roberts wrongly concludes that history is destiny: the Court's failure in four cases to settle on a judicially manageable standard for gerrymandering cases proves, he says, that there is none.
      Writing for the Court's four Democratic appointees, Justice Elena Kagan followed Roberts' hand-down with an extraordinary fifteen-minute dissent, her voice cracking at times with emotion and as she said at the end "deep" sadness. She opened with a dramatic flair. "For the first time ever," she said, quoting her opening passage, "this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities." She answered Roberts by noting that lower federal courts have managed to rule on gerrymandering cases even if the Court's conservatives think they cannot.
      To be sure, it is not the first time that the Court has left a constitutional violation unremedied in the area of reapportionment and redistricting. To its lasting discredit, the Court in 1946 rejected a federal court suit by voters in Illinois seeking to force the state legislature to reapportion congressional districts as required by federal law to have equal populations. Justice Felix Frankfurter provided the pivotal vote in the 4-3 decision in Colegrove v. Green by urging his colleagues to stay out of what he called a "political thicket."
      Frankfurter is remembered today, unfavorably for the most part, as hard to get along with and indifferent to violations of constitutional rights. He remained on the Court long enough to see Colegrove overturned by a 6-2 decision in the seminal reapportionment case, Baker v. Carr (1962).  Chief Justice Earl Warren is today far better remembered and more honored than Frankfurter for leading the Court into remaking the political landscape by entrenching a seemingly obvious democratic principle: one person, one vote.
      After retiring, Warren claimed the Baker v. Carr line of decisions as the most important accomplishment of his 17 years as chief justice. Roberts, at age 65 and perhaps less than halfway through what could be a 30-year tenure, already ponders his legacy. This decision will be part of a legacy that mocks Roberts' insistence that the Court has no Republican justices nor Democratic justices and that, equally, mocks the promise carved in marble above the entrance to the Supreme Court building: "Equal Justice Under Law." 

Thomas Declares War Against Stare Decisis

       Clarence Thomas has been taking pot shots at Supreme Court precedents ever since he joined the Court 28 years ago, but now has declared war against the legal doctrine known as stare decisis that calls for following precedents except in special circumstances.
       Thomas took the gloves off in a separate 17-page opinion last week [June 17] as he joined the Court in declining to overturn the so-called dual sovereignty doctrine, which permits a state and the federal government to prosecute a defendant for the same criminal episode without violating the Double Jeopardy Clause.  The 7-2 decision in Gamble v. United States proved to be a disappointment to the various critics of the dual sovereignty doctrine, including criminal defense lawyers and civil liberties groups on both sides of the political aisle.
       Thomas himself had previously been one of those critics, but he opened his concurring opinion by disavowing his past view. "I agree," Thomas wrote in a newfound realization, "that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine."
       Some other judge with a less exalted view of his own wisdom might take this episode as a lesson in judicial modesty, but not Thomas. Instead, he proceeded to reject a well established doctrine endorsed by all of the other justices, including the two newest justices, Neil Gorsuch and Brett Kavanaugh, in their recent Senate confirmations.
       In Thomas's view, the Supreme Court is constitutionally bound to give a precedent no weight whatsoever if the prior decision is, in his 20-20 hindsight, "demonstrably erroneous." Among those erroneous decisions, in Thomas's view, are such landmarks as the abortion rights decision in Roe v. Wade (1973) and the more recent marriage equality decision in Obergefell v. Hodges (2015).
       Thomas himself pledged allegiance to stare decisis in his Senate confirmation hearing back in 1991. He told the Democratic-majority Senate Judiciary Committee that he had no agenda to overrule precedent if confirmed. That promise was enough to help persuade 11 Democrats to join in the 52-48 vote to confirm Thomas despite the widespread assumption that he would vote to overrule Roe v. Wade at his first opportunity if confirmed.
       In fact, Thomas argued for overturning a prisoner rights' precedent in a case argued in his full month on the Supreme Court. Later in the 1991 term, he joined with three other so-called conservatives in the dissenting opinion in Planned Parenthood v. Casey that forthrightly called for nullifying constitutional protection for reproductive rights nationwide.
       The author of that dissenting opinion, Chief Justice William H. Rehnquist, is often quoted for his observation that stare decisis is "not an inexorable command." Rehnquist made that remark as the author of the 6-3 decision in Payne v. Tennessee (1991) that overturned nearly brand-new precedents to allow victim impact statements in death penalty cases. Two new justices, Anthony Kennedy and David Souter, provided the pivotal votes for scrapping the prior decisions.
       The adherents to stare decisis agree on one proposition at least: a prior decision should not be overturned merely because of a change in personnel at the Supreme Court. Instead, as set out by Justice Antonin Scalia for a 5-4 majority in Montejo v. Louisiana (2009), the Court should consider overruling a prior decision based on "the workability" of the prior standard, "the antiquity of the precedent, the reliance interests stake, and of course whether the decision was well reasoned."
       Scalia once remarked that, in contrast to his own view, Thomas did not really believe in stare decisis. In this new opinion, Thomas drops all pretenses and issues what amounts to a call to arms for conservative activists to take aim at prior decisions willy-nilly
       In his confirmation hearing in 2005, Chief Justice John G. Roberts Jr. famously remarked that overturning prior decisions amounts to a "jolt to the system." In Payne, Rehnquist touted stare decisis as promoting stability, predictability, and respect for the law.
       Thomas begs to differ. "[T]he Court's stare decisis doctrine," Thomas writes now, has the effect of "giving the veneer of respectability to our continued application of demonstrably incorrect precedents." The multi-factor "special circumstances" test, Thomas argues, "invites arbitrariness into judging."
       The current, universally acknowledged approach to stare decisis might have made sense, Thomas now argues, in a common law system that relied primarily on judges to develop the law. "Our federal system is different," Thomas explains, because the Constitution limits the Court's role to "faithfully interpreting laws enacted by [the political] branches." Thomas goes even further by quoting the revered English jurist Blackstone as himself calling to disregard precedents if "flatly absurd or unjust."
       The precedents that Thomas has found unworthy in the past include roughly three dozen that legal commentator Jason Rylander listed in a compilation in 2004. The list would be longer today. Three days after his Gamble concurrence, Thomas went so far as to call explicitly for overruling the 33-year-old precedent in Batson v. Kentucky (1986) that prohibits prosecutors from racial discrimination in jury selection. Thomas's call came in a dissenting opinion in Flowers v. Mississippi [June 21] that Justice Neil Gorsuch joined except for the attack on the prior ruling.
       Thomas's disquisition on stare decisis, if published as a law journal article, would have attracted some attention of course. As an opinion in U.S. Reports, however, the impact may be greater by encouraging various conservative advocacy groups to further politicize federal courts and the Supreme Court itself to the long-term detriment of law and justice in the United States.

For Criminal Justice Reform, Go Local

      Voters in two suburban counties outside Washington, D.C., joined the growing criminal justice reform movement last week [June 11] by ousting two longtime prosecutors in favor of candidates who promised if elected to make fundamental changes in prosecutorial policies. Subject to Virginia's off-year general elections in November, Parisa Dehghani-Tafti and Steve Descano will join the growing number of criminal justice reformers elected around the nation as local prosecutors, notably in such major metropolitan areas as Chicago, Philadelphia, and Orlando, Fla.
      Dehghani-Tafti, a former public defender who had worked on exoneration cases for the Mid-Atlantic Innocence Project, won 52 percent of the vote in defeating two-term incumbent Theo Stamos for the Democratic nomination for commonwealth attorney in the close-in suburban jurisdiction of Arlington County. Steve Descano, a former federal prosecutor, won 51 percent of the vote to oust three-term incumbent Ray Morrogh in the well-to-do outer suburban jurisdiction of Fairfax County.
      Campaigning in Democratic strongholds, neither Stamos nor Morrogh presented themselves as old-style, law-and-order prosecutors. Stamos took credit for reducing the incarceration rate in Arlington County, while Morrogh campaigned under the slogan: "Effective. Fair. Progressive." Still, the Washington Post's story viewed the results as bellwethers: "Voters endorse new mandate on criminal justice," the headline read.
      Miriam Krinsky, executive director of the Los Angeles-based advocacy group Fair and Just Prosecution, estimates that more than three dozen reform-minded prosecutors have been elected in recent years. In comments to the Post, Krinsky described the election results as evidence of "a growing new normal in the world of prosecutions." More and more communities and more and more voters are "tired about the old thinking in the criminal justice system," Krinsky explained.
      Andrew Cohen, a senior fellow at the Brennan Center for Justice who also edits the daily report on criminal justice for the Marshall Project, similarly sees a trend in favor of reformers in local prosecutor races. "Clearly, a big part of the criminal justice reform movement over the past five years has been directed at these races as people realize how powerful local prosecutors have become at the local and state levels," Cohen says.
       Cohen cautions, however, that elections cannot guarantee thoroughgoing reform of themselves. Several of the high-profile reform-minded prosecutors, such as Larry Krasner in Philadelphia, Kimberly Foxx in Chicago, and Aramis Ayala in Orlando, encountered opposition as they sought in office to turn away from punitive, sentence-maximizing prosecution policies.
       Ayala, who is African American, declared her opposition to the death penalty upon taking office in 2017 after ousting the incumbent state's attorney in Florida's fifth most populous county the previous year. Florida's Republican governor, Rick Scott, responded by reassigning capital cases from Ayala's office to another state prosecutor — a move that the Florida Supreme Court upheld on a 5-2 vote. Politically battered, Ayala announced late last month [May 28] that she will not seek re-election in 2020.
       Krasner, a former federal public defender and longtime criminal defense and civil rights lawyer, won election as district attorney in Philadelphia in 2017 in a campaign that drew opposition from the city's police union. In office, Krasner stopped prosecuting marijuana possession cases and instructed prosecutors to stop seeking cash bail for defendants arrested for misdemeanors or nonviolent felonies. Some judges overruled some sentence recommendations as too lenient and resisted Krasner's initiative to shorten probation sentences.
       Kimberly Foxx, who is African American, won election as Cook County state's attorney in 2016 after having helped craft a criminal justice reform agenda as chief of staff to the Cook County Board president. In office, she has promoted bail reform by instructing prosecutors to agree to release on recognizance where appropriate and has raised the threshold for prosecuting theft offenses as felonies. The local police union has criticized Foxx's policies as soft on crime.
      With more than 2,400 local and state prosecutors nationwide, the three dozen or so reformers elected in recent years according to Krinsky are far outnumbered when district attorneys gather for conventions and training sessions. But Krinsky's group is promoting a comprehensive reform agenda under the title "21 Principles for 21st Century Prosecutors" that calls for, among other changes, de-escalating charging policies, making plea bargaining more transparent, and reducing use of cash bail.
      Krinsky acknowledges that the agenda "hasn't taken hold everywhere," but she believes that a "new paradigm" is beginning to form. "We are seeing candidates commit to the principles and commit to implementing them in office," she says.
      Listed twelfth among the 21 principle is an exhortation to "address racial disparity," which the report says "exists at every stage of the justice system." The audience for that recommendation is overwhelmingly white, according to a recent study. Among 2,437 elected local and state prosecutors in office in 2014, fewer than 5 percent were African American, according to the study.
       African Americans are also underrepresented among federal prosecutors, according to my review of the current officeholders. Among 93 U.S. attorneys nationwide, Louis Franklin, U.S. attorney for the middle district of Alabama, appears to be the only African American; my count found four Asian Americans and three Hispanics, all the others white.
       Congress and President Trump are also on board the criminal justice reform movement, at least to some extent. Trump was taking unwarranted credit last week [June 13] for the First Step Act, the federal sentence-reducing law he signed in December 2018 after it moved through Congress with bipartisan support. Among other provisions, the law retroactively reduced crack-related sentences for 1,150 offenders: a significant even if modest step toward moving away from "Incarceration Nation."